Wednesday, October 26, 2016

DOJ Settles False Claims Case vs. SNF

DOJ announced recently that it had settled a False Claims case against Life Care Centers of America Inc. (Life Care) and its owner, Forrest L. Preston. The defendants agreed to pay $145 million to settle a case where the Government claimed “that Life Care violated the False Claims Act by knowingly causing skilled nursing facilities (SNFs) to submit false claims to Medicare and TRICARE for rehabilitation therapy services that were not reasonable, necessary or skilled….” In addition, the defendant also signed a Corporate Integrity Agreement with the Office of Inspector General (HHS-OIG) for HHS. Under this 5 year agreement, “an independent review organization [will] … annually assess the medical necessity and appropriateness of therapy services billed to Medicare” by the defendant.  The suit was brought pursuant to the whistleblower provision of the False Claims Act.

According to the suit, the defendant put corporate-wide procedures and polices into place that caused a maximum number of “beneficiaries in the Ultra High reimbursement level irrespective of the clinical needs of the patients, resulting in the provision of unreasonable and unnecessary therapy to many beneficiaries.” Further the defendant tried to keep SNF residents longer than needed so the defendant could continue to bill for rehab, even though the therapists concluded therapy should be ended. The defendant kept careful track of the therapy minutes per patient and the patient’s therapy days so that the maximum number of patients were at that “highest level of reimbursement for the longest possible period.”

According to an email I received, the amount of the settlement was partially based on statistical sampling.

Thanks to Laurence Hooper for emailing me.

October 26, 2016 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, October 17, 2016

Suit Filed Challenging CMS Rule vs. Pre-Dispute Arbitration

We knew it was coming. The American Healthcare Association has filed suit in the federal district court in the Northern District in Mississippi, challenging the CMS rule that prohibits pre-dispute arbitration in nursing home admission contracts, American Health Care Association Files Court Challenge to Arbitration Rule: CMS Exceeds Statutory Authority by Banning Pre-Dispute Arbitration Agreements in Updated Requirements of Participation

The press release explains

The American Health Care Association (AHCA) today filed a lawsuit against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.

The suit "request[s] the courts [act] to stop the enforcement of the arbitration portion of the rule after its effective date of November 28, 2016." The complaint is available here.

October 17, 2016 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (1)

Wednesday, October 12, 2016

Consumer Financial Protection Bureau Structure Unconsitutional

On October 11, 2016, the U.S. Court of Appeals for the D.C. Circuit ruled in PPH Corp. v. Consumer Financial Protection Bureau. Although initially conceived as a "multi-member independent agency" in its final form approved by Congress, the CFPB is "an independent agency headed not by a multi-member commission but rather by a single Director. Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority – that is, authority to take action on one’s own, subject to no check –than any single commissioner or board member in any other independent agency in the U.S. Government. Indeed, as we will explain, the Director enjoys more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President."  The opinion notes the great power held by the director and describes it as "massive in scope, concentrated in a single person, and unaccountable to the President [and thus] triggers the important constitutional question at issue in this case." Examining historical precedent and discussing the lack of checks on the director's power under the current structure which (the court described as a "threat to individual liberty posed by a single-Director independent agency"), the court held "that the CFPB is unconstitutionally structured."

The court looks next at the appropriate remedy, with the Plaintiff arguing the agency should be shuttered. Instead, the court severed the offending language in the statute, to provide "the President ... the power to remove the Director at will, and to supervise and direct the Director."  The court goes on at length (and acknowledges this) to explain its ruling, and to also address the Plaintiff's challenge to the fine imposed against it by the CFPB. 

The CFPB therefore will continue to operate and to perform its many duties, but will do so as an executive agency akin to other executive agencies headed by a single person, such as the Department of Justice and the Department of the Treasury. Those executive agencies have traditionally been headed by a single person precisely because the agency head operates within the Executive Branch chain of command under the supervision and direction of the President. The President is a check on and accountable for the actions of those executive agencies, and the President now will be a check on and accountable for the actions of the CFPB as well.

The opinion is available here.


October 12, 2016 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)

Monday, October 10, 2016

Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?

My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities.  As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up.  This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.

The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq.   The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result. 

CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs."  CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s.  CMS further explains (at page 399 of the 700 page commentary to the new rules):

Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . . 


We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.


Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”

By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).  

The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016: 

Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.


“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.


LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.


“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.

Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development. 


October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Tuesday, September 27, 2016

Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care

Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services.  That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right?  After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million

But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva.  As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA).  From the Office of Inspector General, Department of Health and Human Services press release:

It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.


The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."


OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.

The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace.  According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming."  For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."

September 27, 2016 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, August 2, 2016

Tough Talk about Health Care Fraud

McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published  a candid editorial about factors affecting health care fraud in the industry.  He writes:

[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations. 


Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.


Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.

For more, read "It's Time for 'The Talk' About Healthcare Fraud."  

August 2, 2016 in Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Wednesday, June 8, 2016

Will President Obama be Remembered as a Leader in Fighting Healthcare Fraud?

The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016,  the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion.  That number is "up" by a billion dollars over the first half of fiscal year 2016.  

Here's a link to the most recent OIG report and here's a link to a recent article about the numbers in McKnight's Long Term Care News


June 8, 2016 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Good News in Fighting Frauds

Hopefully none of the readers of this blog have ever been a victim of a consumer scam, had their identities stolen, or know someone who has been a victim. That said, it is unfortunately likely that we all know someone who has been a victim of a scam. But there is good news on an international front regarding a scam that required victims to send money in order to claim their "winnings".

An article about efforts from U.S. and Dutch law enforcement efforts explain that FIOD and US DoJ conduct simultaneous operations against worldwide multi-million euro fraud with false letters. The article explains Dutch law enforcement is seizing mail from 300 mailboxes and is investigating 6 companies. At the same time DOJ filed suit "against two of the suspected companies and one director in the Netherlands, on behalf of hundreds of thousands of victims." Here's how this scam worked

[T]he main suspects sent millions of letters to people in the United States, Great Britain, Switzerland, Italy, France, Japan and many more countries. In the letters, addressed to people personally, the recipients were made to believe that they had won an award in the amount of money or a check, which they had not claimed yet. Another example was that the sender of the letter intended to give money to the recipient as an act of charity. In addition, letters were sent which stated that the recipient was a guaranteed winner in a lottery. To be able to transfer the money to the recipient, the latter had to send a cash amount of between 20 and 45 euro or a cheque, each time to a mailbox in the Netherlands.

In various letters, approximately 300 different mailbox numbers in the Netherlands were mentioned. Allegedly, the six suspected Dutch companies, which are the subject of the FIOD-investigation manage a large part of the mailboxes, empty them and process the mail. Presumably, the companies were allowed to keep part of the money as payment for services rendered, but the larger part of the money was transferred to bank accounts, which allegedly belonged to the main suspects of the fraud.

The DOJ press release is available here which also includes a link to the complaint filed in federal court.  Kudos to U.S. DOJ and to the Dutch law enforcement agency for excellent work!


June 8, 2016 in Consumer Information, Crimes, Current Affairs, Federal Cases, International | Permalink | Comments (0)

Thursday, May 26, 2016

Life Care Centers of America: Legal Updates

Sunday, May 15, 2016

HCR ManorCare to "Spin Off" Into "SpinCo"

As reported in several financial news services, including McKnight's Long-Term Care News here, HCR ManorCare, owner/operator of a large number of skilled nursing and assisted living properties, is to be spun off by its corporate parent, HCP Inc., into the hands of "an independent real estate investment trust" called, appropriately enough, "SpinCo."  

Certainly this seems to be a move to improve the financial position of HCP by separating the nursing home operations from independent living operations;  it remains to be seen whether it also allows "troubled" HCR ManorCare to resolve concerns about quality of care and billing practices. The business history of ManorCare, with all of its various partners and name changes, probably serves as a marker for changes throughout the skilled care industry.   For ManorCare's own perspective on its history, see "Our History Is Still Being Written."   

May 15, 2016 in Consumer Information, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Tuesday, May 3, 2016

Chronically Ill or Disabled In South Dakota-Is A Nursing Home In Your Future?

The New York Times ran a story on May 2, 2016 that South Dakota is under investigation by the federal government for improperly placing many residents with disabilities in nursing homes instead of providing care in the community. South Dakota Wrongly Puts Thousands in Nursing Homes, Government Says reports that "the Justice Department said ... that thousands of patients were being held unnecessarily in sterile, highly restrictive group homes. That is discrimination, it said, making South Dakota the latest target of a federal effort to protect the civil rights of people with disabilities and mental illnesses, outlined in a Supreme Court decision 17 years ago." 

As the story notes, many individuals need the level of care provided by a nursing home, but others do not.  "But for untold numbers of others — with mental illnesses, developmental disabilities or chronic diseases — the confines of a nursing home can be unnecessarily isolating. Yet when patients seek help paying for long-term care, states often steer them toward nursing homes, even though it may not be needed."  The article discusses the Olmstead decision and the government's strategies in these cases to challenge the placement.

South Dakota responded that they have made progress but the federal government sees it as not enough, especially since this is not a recent situation. "In-home health aides can be less expensive than nursing homes because they do not provide unnecessary services. States, though, face a chicken-or-egg conundrum. Does money go to nursing homes because beds are often more readily available than in-home services? Or are there fewer in-home services because less Medicaid money is spent on them? And nursing homes have little financial incentive to encourage patients to seek in-home care...."

This article can be a great starting point for an interesting discussion with students.

May 3, 2016 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Friday, April 29, 2016

Is Nursing Home Operator Entitled to Bar Plaintiff Firm's Use of Finger-Pointing Ads?

It seems nursing home operators are calling upon some of the same "trade practice" laws they are sometimes accused of violating, in an effort to thwart what the operators see as misleading advertising by personal injury attorneys.  

One of the latest suits has reached the Georgia Supreme court, where the Mississippi-based law firm of McHugh Fuller Group is seeking to overturn a lower court's injunction preventing it from running a statewide ad campaign, including full-page color ads, seeking potential clients who "suspect that a loved one was NEGLECTED or ABUSED" by a nursing home run by PruittHealth, Inc.  From an April 27, 2016  Georgia Courts' summary of parties' arguments before the high court

PruittHealth sued the law firm under the Georgia Deceptive Trade Practices Act, which authorizes a court to issue an injunction (a court order requiring a certain action be halted) against anyone who uses someone’s trade name without permission if there is even a “likelihood” that the use will injure the business reputation of the owner or dilute its trade name or mark. The trial court entered a temporary restraining order against the law group, scheduled a hearing and notified the parties that it intended to consider PruittHealth’s request for a permanent injunction. The trial court issued another order on June 1, 2015, permanently stopping the law group from running ads that used PruittHealth’s trade names, service marks, or other trade styles. The law group filed a motion for reconsideration, which the trial court denied. The law firm is now appealing to the Georgia Supreme Court....


The law group argues, among other things, that the court erred in determining the ads violated Georgia Code section 10-1-451(b), which is called Georgia’s “antidilution statute.” That statute says dilution occurs “where the use of the trademark by the subsequent user will lessen the uniqueness of the prior user’s mark with the possible future result that a strong mark may become a weak mark.” The law firm argues that it is not eroding the strength of PruittHealth’s mark, but is only identifying specific nursing homes against which it is accepting cases, and that PruittHealth failed to demonstrate that actual injury occurred as a result of the ads.

This isn't the first time that the McHugh Fuller Law Group has been on the receiving end of a lawsuit by a nursing home company.  In February 2015, Heartland of Portsmouth in Ohio and McHugh Fuller Law Group were in federal court arguing about diversity jurisdiction over Heartland's claim the law firm was using "false and misleading advertising in order to encourage tort litigation" against the nursing home's operations in Ohio.  Similar litigation, seeking injunctive relief, was underway by Genesis Healthcare Corporation against the McHugh Fuller firm in West Virginia in 2007, although it is unclear from my research whether either of those cases reached a final resolutions.  

My thanks to Professor Laurel Terry, Dickinson Law, for pointing me to this ABA Journal post that encouraged my search for more about these cases.

April 29, 2016 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (0)

Monday, April 25, 2016

Kudos to the Chief Justice

Last week 12 lawyers who are deaf or hard of hearing were sworn into the Supreme Court Bar.  That in and of itself is very special. It was made more so by the actions of Chief Justice Roberts.  Chief Justice Roberts learned some sign language for the occasion; "[a]fter they were presented to the court for admission, Roberts signed in American Sign Language: 'Your motion is granted.'”  Well done Chief Justice.

April 25, 2016 in Consumer Information, Current Affairs, Federal Cases, Legal Practice/Practice Management, Other | Permalink | Comments (0)

Friday, April 15, 2016

What's the Connection Between "Living Wills" for Banks vs Humans?

Lately, I've been hearing and seeing the phrase "living wills" in mainstream news sources such as the New York Times, but at first the context was confusing to me because the media were speaking and writing about Big Banks, not humans. So, how did it come about that following the 2008 financial crisis, regulators started requiring large financial institutions to have "living wills?"

The Wall Street Journal explains in What You Need to Know About Living Wills [in the context of Big Banks]:

A living will is a document from a financial firm that describes how it would go through bankruptcy without causing a broader economic panic or needing a bailout from taxpayers. The largest U.S. banks have filed several versions of them since the 2010 Dodd-Frank law, which ​required living wills from financial firms ​that were judged to pose a potential risk to the broader economy. The documents are also known as resolution plans. “Resolution” is regulatory parlance for dealing with a failing financial firm.  Living wills are separate from other regulatory requirements, such as annual “stress tests” that measure whether could banks survive a severe recession.

I've not yet determined who first came up with "living wills" to describe what Dodd-Frank, at 12 U.S.C. Section 5361(d), refers to as "resolution plans." Without accurate, full disclosure, addressing all aspects of the financial institution's operations, such plans -- by any name -- seem unlikely to achieve the goal of greater market stability.  As another WSJ writer points out, the utility of Big Banks' living wills comes if not just regulators, but the Bank executives, are paying attention:

The point of the living wills, like the stress tests, is to sit banks down and make them comb through their businesses in excruciating detail, with a focus on grim aspects like liquidity crunches and operational risks in bankruptcy. A useful result of the living wills is that, if they're done correctly, they give regulators a good overall picture of how a bank works, how money flows between its parts, what its pressure points are, and how it responds to crisis. But a much more important result is that, if they're done correctly, they give bankers themselves that same overall picture: They force a bank's executives and directors to understand the workings of the bank in a detailed and comprehensive way. And if they're done incorrectly, that's useful too: They let the regulators and bankers know what they don't know.   

The full article on this point is titled, with nice irony, Living Wills Make Banks Think About Death.  There, a least, is one similarity in living wills for humans and banks.  

April 15, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases | Permalink | Comments (2)

Monday, April 11, 2016

When Remittiturs in Nursing Home Awards Trigger Inquiry into Campaign Finances for Judges...

I think it is safe to say that in recent years, juries have not been shy about awarding substantial damages in trials involving claims of negligent care, even -- or perhaps especially -- when the resident is very old.  Lately, several of our Elder Law Prof Blog posts have focused on nursing home providers' efforts to avoid jury trials through the use of pre-dispute, binding arbitration clauses in admission agreements.  See e.g. here and here.  However, there's another way in which litigation of nursing home care claims have triggered collateral legal disputes, and this time it is for the judicial system itself.  

In March 2016, former Arkansas state court judge Mike Maggio, age 54, was hit with a maximum prison sentence of 10 years, following his plea of guilty to federal charges for taking a bribe to reduce a verdict in a nursing home negligence case.  Maggio was alleged to have reduced a jury verdict in a nursing home case from $5.2 million to $1 million, after the owner of the facility reportedly made multiple campaign contributions to "PACs that were to funnel the money to Maggio for a planned race" for the state's Court of Appeals.  

In issuing the sentence, United State District Judge Brian Miller emphasized that while he had earlier rejected the prosecution's argument that any sentence should be guided by the multi-million dollar size of the remittitur, the maximum sentence was still warranted because "corruption in the judicial system especially erodes public trust in the system," noting "a judge is the system."  Details of the investigation -- as well as on-going litigation -- are provided in the Arkansas Times' Arkansas Blog.  

By comparison, in West Virginia, news media questioned a business transaction and contributions to a judge's re-election campaign, asking whether they affected the decision of the State Supreme court justice when she wrote the lead opinion in an appellate decision that reduced a 2011 jury verdict in nursing home negligence case from $90.5 million to $36.6 million.  The justice denied any improper influence or relationship with defense-side parties; following an investigation, the West Virginia Judicial Investigation Commission concluded the justice had no knowledge of the transactions in question, and it dismissed the ethics complaint in June 2015. 

The potential for campaign contributions to influence judicial election campaigns has long been one source of criticism of elections for judges.

April 11, 2016 in Consumer Information, Crimes, Ethical Issues, Federal Cases, State Cases | Permalink | Comments (0)

Friday, March 25, 2016

Filial Friday: Family Caregiving & Standing Issues for Family Members

The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.  

The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws."  She concludes:

The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.

In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.  

In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."  

The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment.  "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a).  Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."    

For more see In re Skinner, ___ Fed Appx. ___, 2016 WL 850950 (3d Cir. 2016). 

March 25, 2016 in Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, March 8, 2016

Justice Obtained-Guilty Plea in Romance Scam!

The Justice Department in the Southern District of Illinois issued a press release on March 3, 2016 announcing a perpetrator in the midst of trial changed his plea to guilty. Nigerian Scammer Convicted Of On-Line Romance Fraud notes that the perpetrator, the ringleader, pleaded guilty to all charges. He was arrested in London in 2014 and at trial, "'the evidence established that [the perpetrator], a citizen of the Federal Republic of Nigeria, was the ringleader of a criminal organization operating within South Africa that targeted and stole from hundreds of women across the United States, including dozens in the St. Louis metropolitan area." noted Acting United states Attorney Porter. "Our office will continue to pursue justice for these victims in [the perpetrator's] prison sentence and in our never-ending efforts to get restitution."'

Sentencing is set for early in the summer, and  "[b]y statute, [the perpetrator] faces a maximum prison sentence of 127 years, a fine of $250,000 on each of the eight counts of the indictment, and as much as five years of supervised release. He will also be required to pay restitution to the victims of his crimes."

March 8, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, International | Permalink | Comments (0)

Tuesday, March 1, 2016

NPR Story on Nursing Home Evictions

Previously I wrote about a story in Kaiser Health News about nursing home residents stuck in hospital "limbo" and the ensuing litigation.  NPR also did a story about this. Nursing Home Evictions Strand The Disabled In Costly Hospitals was released on February 25 and features an audio of the story as well as the print version.  Although the suit is filed in California, this is not a California-specific issue.  As the story notes

This is not just a California issue. Nationwide, between 8,000 and 9,000 people complain to the government about nursing home evictions every year. It's the leading category of all nursing home complaints, according to the federal Administration for Community Living.

Robyn Grant thinks the problem is even larger than reported. Grant would know: She's the public policy director for the nonprofit National Consumer Voice for Quality Long-Term Care, so she hears about many nursing home evictions around the country like the ones in California.

March 1, 2016 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (1)

Sunday, February 28, 2016

Abandoned Nursing Home Residents?

Kaiser Health News (KHN) ran a story titled The Agonizing Limbo Of Abandoned Nursing Home Residents. The story focuses on the refusal of some California nursing homes to readmit residents after a hospital stay.  The story opens with a story of one resident who "had been living[in a nursing home] for four years... [and] the home refused to readmit him, even after being ordered to do so by the state. Nearly nine months later, [the resident] is still in the hospital."  It seems that these residents are trapped in a sort of limbo.

Nursing home residents are entitled to hearings under federal law to determine whether they should be readmitted after hospitalization. The state Department of Health Care Services holds the administrative hearings, but has said it is not responsible for enforcing the rulings.

But the state Department of Public Health, which oversees nursing homes, neglects to enforce the rulings and sometimes disagrees with them, according to advocates and court documents.

That leaves residents .... [even those] who won ... [the]  hearing .... with little recourse — and not many places to go. And since many nursing home residents have publicly-funded insurance, it means taxpayers are on the hook for hospital stays long after the patients are ready for discharge.

California Advocates for Nursing Home Reform (CANHR) in November, 2015 filed suit against California Health & Human Services on behalf of some of these residents with an upcoming hearing in March of 2016. The suit seeks "to require California to establish a hearing process that complies with federal law and to enforce the rulings." The defendant has filed a motion to dismiss.

February 28, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Monday, February 1, 2016

How Well Do Families Understand Updated Wage & Hour Rules for "Home Care"?

Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?"  For many years, I would get a blank stare or, perhaps, "what exactly is elder law?"  Now, more frequently the response is "do you have time for a quick question?"  (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....") 

I'm hearing more questions about home care workers.  One frequent question is about overtime pay, and the type of employment definitely matters.  The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.  

Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight.  Family members will tell me "we just want someone there in case something happens."  That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services.  There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.  

In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation.  See Home Care Association of America v. Weil.  Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.  

As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection."   "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)  

DOL provides this example:

Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.

For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city! 

February 1, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)